Miller v. Warden, Maryland House of Correction

Decision Date26 January 1973
Docket NumberNo. 64,64
Citation299 A.2d 862,16 Md.App. 614
CourtCourt of Special Appeals of Maryland

Fred Warren Bennett, Rockville, for applicant.

Francis B. Burch, Atty. Gen., Arthur A. Marshall, Jr., State's Atty., Prince George's County and Richard P. Arnold, Asst. State's Atty., for respondent.


MOYLAN, Judge.

The only thing that can be said about constitutional waiver in the abstract is that nothing can be said about constitutional waiver in the abstract. It is as protean in its manifestations as the number of constitutional rights which there are to be waived multiplied by the number of circumstances in which they may be waived. It is unnecessary in deciding the case before us to attempt to analyze this shifting quality of waiver in its manifold contexts. 1 Even a partial cataloguing of its applications illustrates the breadth of the spectrum through which it vacillates-operating at times with fastidious forbearance, at times blithely and summarily, and frequently with coquettish inconstancy.

At one end of the spectrum, the tendering of a guilty plea in lieu of standing trial-the collective waiver of all constitutional rights in one fell swoop-is circumscribed with rigid precautions. It must be shown affirmatively on the face of the record that the defendant has been informed of at least three of the constitutional rights subsumed in the right to trial and that he knowingly and voluntarily relinquishes those rights. Boykin v. Alabama 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274. 2 The collective relinquishment of rights by a plea of nolo contendere is no less sweeping and the waiver standard is not diminished. North Carolina v. Alford, 400 U.S. 25, 91 S.Ct. 160, 27 L.Ed.2d 162; McCall v. State, 9 Md.App. 191, 263 A.2d 19; Williams v. State, 10 Md.App. 570, 271 A.2d 777. The waiver of the Sixth Amendment right to the assistance of counsel at a trial proper is little less rigid. Speaking in that context, Johnson v. Zerbst, 304 U.S. 458, 464, 58 S.Ct. 1019, 1023, 82 L.Ed. 1461, has become the rhetorical wellspring for most of our restrictive waiver language, "(C)ourts indulge every reasonable presumption against waiver' of fundamental constitutional rights and that we 'do not presume acquiescence in the loss of fundamental rights.' A waiver is ordinarily an intentional relinquishment or abandonment of a known right or privilege.' In the context of the same constitutional right, Carnley v. Cochran, 369 U.S. 506, at 516, 82 S.Ct. 884, 8 L.Ed.2d 70, echoes Johnson v. Zerbst, 'Presuming waiver from a silent record is impermissible.' The Sixth Amendment right to the assistance of counsel at other 'critical stages', however, shades off gradually in terms of our reluctance to presume waiver either from the actions of the accused or from his complete inaction. An accused has the right to the assistance of counsel during the course of a custodial interrogation. Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694. He must be informed of that right. Once having been informed, however, his waiver of it is implicit in a prima facie showing that a subsequent confession was freely and voluntarily made. Barnhart v. State, 5 Md.App. 222, 246 A.2d 280. An accused has the right to the assistance of counsel when he is placed in a police lineup. United States v. Wade, 388 U.S. 218, 87 S.Ct. 1926, 18 L.Ed.2d 1149. Yet a denial of that right will avail him naught, if he fails to object at trial either to direct evidence of that lineup identification or to a courtroom identification possibly stemming from that lineup identification. Smith and Samuels v. State, 6 Md.App. 59, 250 A.2d 285.

An accused waives his Fourth Amendment protections whenever he consents to a search of his person or his property which the police would not be authorized to make absent that consent. The Supreme Court speaks of this consent having to be 'freely and voluntarily given. This burden cannot be discharged by showing no more than acquiescence to a claim of lawful authority.' Bumper v. North Carolina, 391 U.S. 543, 548-549, 88 S.Ct. 1788, 1792, 20 L.Ed.2d 797. 3 Consent to search given by a third party-friend, relative, landlord or employer-is sometimes rationalized on the basis of property rights and standing to object and sometimes rationalized on a theory of 'vicarious waiver' or assumption of risk that the agent will consent to the search. Frazier v. Cupp, 394 U.S. 731, 89 S.Ct. 1420, 22 L.Ed.2d 684. Other Fourth Amendment waivers occur prior to and in the course of the trial process. Even when physical evidence is seized in clear contravention of an accused's Fourth Amendment rights, the failure, apparent from the mere silence of the record, to demand a pretrial suppression hearing or to object to the evidence when it is introduced will be dispositive of the constitutional protection. There is no requirement that an accused be informed, on the face of the record or anywhere else, of his right to move to suppress evidence or to object to its admission. There is no requirement that his acquiescence in the waiver of his Fourth Amendment protection be shown to have been knowing and voluntary. Henry v. Mississippi, 379 U.S. 443, 85 S.Ct. 564, 13 L.Ed.2d 408; Reid v. State, 10 Md.App. 6, 267 A.2d 332.

In the area of Fifth Amendment guarantees, the protection against double jeopardy is waived if the defendant fails to interpose his plea at the inception of a second prosecution. 21 Am.Jur.2d, Criminal Law, § 165, p. 231. Similarly, the election of a convicted defendant to seek appellate reversal or the election of a defendant on trial to move for a mistrial represents, ipso facto, a waiver of any double jeopardy claim upon the new trial. United States v. Perez, 9 Wheat. 579, 22 U.S. 579, 6 L.Ed. 165; Baker, Whitfield and Wilson v. State, 15 Md.App. 73, 289 A.2d 348. In the self-incrimination area, a witness before a grand jury who answered a few too many questions was held to have 'waived' her privilege with respect to additional details since there was no real danger of further incrimination. Rogers v. United States, 340 U.S. 367, 71 S.Ct. 438, 95 L.Ed. 344.

In the area of Sixth Amendment protections, it cannot seriously be maintained that a lawyer's 'waiving of the reading of the indictment' will not bind his client in terms of the right 'to be informed of the nature and cause of the accusation.' Nor can it be maintained that the right to 'an impartial jury' requires an affirmative explanation of the right to ask for a change of venue, the right to challenge the array, the right to propound certain voir dire questions, the right to challenge for cause and the right to exercise peremptory challenges followed by an express waiver of such rights from the mouth of the accused.

The Sixth Amendment right of confrontation reveals the sliding scale between the degree to which a right is waived and the degree of waiver required at its most volatile. In Brookhart v. Janis, 384 U.S. 1, 86 S.Ct. 1245, 16 L.Ed.2d 314, the agreement, by counsel, that 'he would not contest the state's case or cross-examine its witnesses but would require only that the state prove' a prima facie case, was deemed to be tantamount to a plea of guilty and the rigid waiver standards of Johnson v. Zerbst were observed. There a blanket waiver of all cross-examination of all witnesses was involved. A far lesser question, if not in kind at least in degree, would obviously be presented where a defense attorney agrees to stipulate to the testimony of a single minor or non-controversial witness. Sound trial tactics frequently dictate the acceptance by way of stipulation of a post-mortem autopsy protocol, a ballistics report, a chemist's analysis of suspected drugs, and other reports from the local and national crime laboratories, rather than requiring the experts who conducted the tests to appear in court. Each of these stipulations involves, to be sure, a waiver of the right of confrontation, but of a type frequently indulged in throughout a trial. 4 The right to cross-examine a witness is an integral part of the right of confrontation. Pointer v. Texas, 380 U.S. 400, 85 S.Ct. 1065, 13 L.Ed.2d 923. The remarks of Judge Thompson in Zimmerman v. State, 9 Md.App. 488, 498, 265 A.2d 764, 771 (dissenting opinion), are appropriate here:

'An accused has a federal constitutional right to cross-examine witnesses against him, Bruton v. United States, 391 U.S. 123, 88 S.Ct. 1620, 20 L.Ed.2d 476. Does this mean that every time a defense attorney decides not to cross-examine a particular witness the trial must be stopped while inquiry is made as to whether or not the accused is personally making an intelligent and knowing waiver? I think not.'

Further down the sliding scale would be the non-objection by counsel to any shred of testimony involving hearsay information. It cannot seriously be contended that the trial must suspend while a defendant is examined as to the knowledgeability and voluntariness of each passing lapse of total confrontation or that counsel is incapacitated from acting on his own best judgment each time he foregoes an objection or each time he announces, 'No questions.' The most intriguing variation upon the relinquishment or abandonment of the right to confrontation is that where a defendant may lose his very right to be present at the trial because of waiver through misconduct. Illinois v. Allen, 397 U.S. 337, 90 S.Ct. 1057, 25 L.Ed.2d 353; Jones v. State, 11 Md.App. 686, 5 276 A.2d 666.

If the waiver, by way of guilty plea, of the general right to trial represents the tight end of the waiver spectrum, the loose end is unquestionably the waiver of the Sixth Amendment right to a speedy trial. Although no longer absolutely dispositive of the speedy trial question adversely to an accused, the failure to demand trial-gleaned from the silent record-is still...

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18 cases
  • State v. McKenzie
    • United States
    • Court of Special Appeals of Maryland
    • April 18, 1973 made. There is no hard and fast waiver standard to be applied. We recently discussed the volatile quality of waiver in Miller v. Warden, 16 Md.App. 614, 299 A.2d 862. We there characterized waiver as 'as protean in its manifestations as the number of constitutional rights which there are......
  • Owens v. State
    • United States
    • Court of Special Appeals of Maryland
    • June 5, 2007
    ...and the several states. Duncan v. Louisiana, 391 U.S. 145, 88 S.Ct. 1444, 20 L.Ed.2d 491 (1968); accord Miller v. Warden, 16 Md.App. 614, 623-24, 299 A.2d 862, 868 (1973). The Maryland Constitution also provides for the right to a jury trial in several articles of its Declaration of Rights.......
  • Owens v. State, No. 103, September Term, 2006 (Md. App. 6/5/2007)
    • United States
    • Court of Special Appeals of Maryland
    • June 5, 2007
    ...and the several states. Duncan v. Louisiana, 391 U.S. 145, 88 S. Ct. 1444, 20 L. Ed. 2d 491 (1968); accord Miller v. Warden, 16 Md. App. 614, 623-24, 299 A.2d 862, 868 (1973). The Maryland Constitution also provides for the right to a jury trial in several articles of its Declaration of Rig......
  • Smith v. State
    • United States
    • Court of Special Appeals of Maryland
    • February 26, 1973
    ...or more attractive, to an accused than a jury trial or that a court trial is in any way 'a second class mode of trial.' See Miller v. Warden, Md.App., 299 A.2d 862, No. 64, September Term, 1972, Post Conviction, filed January 26, 1973. The court trial plays a most important part in the orde......
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